Citation Nr: 0921886
Decision Date: 06/10/09 Archive Date: 06/17/09
DOCKET NO. 00-10 927 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUE
Entitlement to a rating higher than 10 percent for muscle
strain and tendonitis of the left knee.
REPRESENTATION
Veteran represented by: Mississippi Veterans Affairs
Commission
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
T. Azizi-Barcelo, Counsel
INTRODUCTION
The Veteran, who is the appellant, served on active duty from
February 1971 to December 1973.
This matter is before the Board of Veterans' Appeals (Board)
on appeal of a rating decision, dated in March 2000, of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Jackson, Mississippi.
In January 2004, the Veteran appeared at a hearing before the
undersigned Veterans Law Judge. The transcript of the
hearing is in the record.
In December 2004 and in January 2008, the Board remanded the
case for additional development. As the requested
development has been completed, no further action is
necessary to comply with the Board's remand directives.
Stegall v. West, 11 Vet. App. 268 (1998).
In statements in January 2004 and in August 2006, the Veteran
raised a claim for increase for posttraumatic stress disorder
and a claim for a total rating disability for compensation
based on individual unemployability, which are referred to
the RO for appropriate action. Additionally, the record
raises a claim of service connection for osteoarthritis and
meniscal tears the left knee, which are also referred to the
RO for appropriate action.
FINDING OF FACT
The muscle strain and tendonitis of the left knee is
manifested by no more than moderate muscle impairment with
flexion to 50 degrees and extension to 0 degrees without
instability.
CONCLUSION OF LAW
The criteria for a rating higher than 10 percent for muscle
strain and tendonitis of the left knee have not been met. 38
U.S.C.A. §§ 1155, 5107(b) (West 2002 &. Supp. 2009); 38
C.F.R. § 4.71a, Diagnostic Codes 5257, 5260, 5261; 38 C.F.R.
§ 4.73, Diagnostic Code 5311 (2008).
Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA amended VA's duties to notify and to assist a
claimant in developing information and evidence necessary to
substantiate a claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38
C.F.R. § 3.159.
Duty to Notify
Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA
receives a complete or substantially complete application for
benefits, it will notify the claimant of the following: (1)
any information and medical or lay evidence that is necessary
to substantiate the claim, (2) what portion of the
information and evidence VA will obtain, and (3) what portion
of the information and evidence the claimant is to provide.
The notification requirements are referred to as Type One,
Type Two, and Type Three, respectively. See Shinseki v.
Sanders, 129 S. Ct. 1696 (2009).
Also, the VCAA notice requirements apply to all five elements
of a service connection claim. The five elements are: (1)
veteran status; (2) existence of a disability; (3) a
connection between the veteran's service and the disability;
(4) degree of disability; and (5) effective date of the
disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006).
In a claim for increase, the VCAA notice requirements are the
type of evidence needed to substantiate a claim, namely,
evidence demonstrating a worsening or increase in severity of
the disability and the effect that worsening has on the
claimant's employment and daily life.
Also, if the Diagnostic Code under which the claimant is
rated contains criteria necessary for entitlement to a higher
disability rating that would not be satisfied by the claimant
demonstrating a noticeable worsening or increase in severity
of the disability and the effect of that worsening has on the
claimant's employment and daily life (such as a specific
measurement or test result), the VA must provide at least
general notice of that requirement to the claimant. Vazquez-
Flores v. Peake, 22 Vet. App. 37, 43 (2008).
The VCAA notice must be provided to a claimant before the
initial unfavorable adjudication by the RO.
Pelegrini v. Principi, 18 Vet. App. 112 (2004).
The initial rating decision in March 2000 by the RO, denying
to a disability rating higher than 10 percent for muscle
strain and tendonitis of the left knee, preceded the
enactment of the VCAA. As the VCAA notice was not mandated
at the time of the initial rating decision in March 2000, the
RO did not err in not providing such notice, but the Veteran
does have the right to VCAA content-complying notice and
proper subsequent VA process. Pelegrini v. Principi, 18 Vet.
App. 112 (2004).
Post-adjudication VCAA notice was provided by letters, dated
in March 2006 and in February 2008. The notice included the
type of evidence needed to substantiate the claim for
increase, namely, evidence indicating an increase in severity
and the effect that the worsening had on employment and daily
life.
The Veteran was notified that VA would obtain VA records and
records of other Federal agencies, and that he could submit
other records not in the custody of a Federal agency, such as
private medical records, or with his authorization VA would
obtain any nonfederal records on his behalf. The notice
included the provisions for the effective date of the claim
and for the degree of disability assignable.
As for content of the VCAA notice, the documents
substantially complied with the specificity requirements of
Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying
evidence to substantiate a claim and the relative duties of
VA and the claimant to obtain evidence); of Charles v.
Principi, 16 Vet. App. 370 (2002) (identifying the document
that satisfies VCAA notice); of Dingess v. Nicholson, 19 Vet.
App. 473 (2006) (notice of the elements of the claim); and of
Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) (evidence
demonstrating a worsening or increase in severity of a
disability and the effect that worsening has on employment
and daily life, except for general notice of the criteria of
the Diagnostic Code under which the claimant is rated).
To the extent that the VCAA notice was provided after the
initial adjudication, the timing of the notice did not comply
with the requirement that the notice must precede the
adjudication. The procedural defect was cured as after the
RO provided substantial content-complying VCAA notice, the
claim for increase was readjudicated as evidenced by the
supplemental statement of the case, dated in March 2009.
Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Timing
error cured by adequate VCAA notice and subsequent
readjudication without resorting to prejudicial error
analysis.).
As for the omission of the general notice of the criteria of
the Diagnostic Codes under which the claimant is rated, at
this stage of the appeal, when the Veteran already has notice
of the rating criteria as provided in the statement of the
case dated in April 2000, and by supplemental statements of
the case, dated in February 2001 and March 2009, a reasonable
person could be expected to understand from the notice what
the criteria were for rating the disability and further
notice of the exact same information would not aid in
substantiating the claim.
A VCAA notice error is harmless unless the error affects the
essential fairness of the adjudication. Vazquez-Flores at
45-46. Because VA provided the Veteran with reasonable
notice of how to obtain a higher rating, the post-
adjudicatory notice and opportunity to develop the case that
was provided during the administrative appellate proceeding
rendered the limited VCAA notice error non-prejudicial as the
error did not affect the essential fairness of the
adjudication.
Duty to Assist
Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to
assist the claimant in obtaining evidence necessary to
substantiate the claim. The RO has obtained VA records. The
Veteran was afforded VA examinations. As the Veteran has not
identified any additional evidence pertinent to the claim,
not already of record, and as there are no additional records
to obtain, the Board concludes that no further assistance to
the Veteran in developing the facts pertinent to the claim is
required to comply with the duty to assist.
REASONS AND BASES FOR FINDING AND CONCLUSION
Factual Background
In a January 1985 rating decision, the RO granted service
connection for strain of the medial head of the left
gastrocnemius and assigned a noncompensable evaluation under
Diagnostic Code 5311. The rating was increased to 10 percent
by a rating decision in September 1986, following a July 1986
compensation examination which resulted in the diagnostic
impression of tendonitis. The 10 percent rating has remained
in effect ever since. In August 1999, the Veteran submitted
the current claim for a rating higher than 10 percent for
muscle strain and tendonitis of the left knee.
On VA examination in September 1999, the Veteran complained
of pain in the knee. The Veteran's gait was normal, he could
squat, and walk on his heels and toes. The left knee had
full extension and 140 degrees of flexion. He had no
quadriceps atrophy, retropatellar crepitation, patellar
instability, swelling or effusion. His ligaments were
stable. X-rays of the left knee revealed no objective
evidence of pathology.
VA records show that in 2000 the Veteran complaints of left
knee pain and he used of a cane for ambulation. In March
2001, there was full range of motion with pain. In August
2002, the Veteran was seen for internal derangement of the
left knee. He was referred for a knee brace. In August
2003, the Veteran had full range of motion without swelling,
deformity, increased warmth or erythema. No effusion was
present. X-rays revealed no abnormality. In July 2004, the
Veteran complained of left knee pain, occasional catching and
locking, and instability. The Veteran walked with a cane.
X-rays were unremarkable. The ligaments were stable with no
effusion. In September 2004, X-rays revealed no evidence of
fracture or dislocation. There were mild degenerative
changes in the knee with minimal joint effusion. In January
2005, X-rays showed mild arthrosis.
In statements and at hearings in August 2000 and in January
2004, the Veteran complained of constant left knee pain and
swelling. He stated that his knee gave way on a weekly basis
and caused him to fall. The Veteran had difficulty going up
and down stairs, sitting, and getting up.
On VA examination in November 2006, the Veteran complained of
knee pain along with weekly episodes of locking and giving
way. He also complained of flare-ups of pain. There was no
history of left knee dislocation or surgery. He did have an
injection once. The Veteran used a cane and a knee splint.
There was no objective evidence of tenderness in the anterior
area of the left knee. There were no areas of localized
tenderness. The Veteran complained of pain in the popliteal
area with movement of the knee. The examiner noted that the
Veteran was uncooperative during testing of the range of
motion studies and attempts at movement were met with great
resistance. Flexion was to 80 degrees and extension was
full. The examiner was unable to estimate limitation of
function during flare-ups without resorting to speculation.
Stability testing, including Lachman, McMurray and drawer
tests, were normal and there was no instability of the knee.
An MRI revealed effusion of the left knee joint. The
diagnosis was arthritis of the knee and joint effusion and
meniscus derangement.
On VA examination in November 2008, the Veteran complained of
constant left knee pain with intermittent swelling. He
described difficulty getting out of bed, standing, or walking
due to pain. He stated the he has been unable to work since
1994 due to the left knee disability and the service-
connected posttraumatic stress disorder. The Veteran walked
with a slight limp on the left. He used a cane for
ambulation. Flexion of the left knee was to 65 degrees, and
he had zero degrees of extension. No additional limitation
of motion after repetitive movement and the pain was
characterized as constant rather than flare-ups. The
Veteran complained of pain throughout range of motion. He
demonstrated guarding throughout range of motion. The
Veteran had tenderness to palpitation in the popliteal
region. There was no ligamentous instability.
The examiner referred to joint effusion by MRIs in November
2006 and in September 2007. In May 2008, the diagnosis was
strain of the medial head of the left gastrocnemius with
tendonitis of the left knee.
General Rating Principles
Disability ratings are determined by the application of VA's
Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R.
Part 4. The percentage rating in the Rating Schedule
represents, as far as can be practicably determined, the
average impairment in earning capacity resulting from
diseases and injuries incurred or aggravated during military
service and their residual conditions in civil occupations.
Separate diagnostic codes identify the various disabilities.
38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.
VA has a duty to acknowledge and consider all regulations
that are potentially applicable through the assertions and
issues raised in the record, and to explain the reasons and
bases for its conclusions. Schafrath v. Derwinski, 1 Vet.
App. 589 (1991).
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
for that rating. Otherwise, the lower rating will be
assigned. 38 C.F.R. § 4.7.
The Board will consider whether separate ratings may be
assigned for separate periods of time based on facts found, a
practice known as "staged ratings," whether it is an initial
rating case or not. Fenderson v. West, 12 Vet. App. 119,
126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).
Rating factors for a disability of the musculoskeletal system
included functional loss due to pain supported by adequate
pathology and evidenced by visible behavior of the claimant
undertaking the motion, weakened movement, excess
fatigability, swelling and pain on movement. 38 C.F.R. §§
4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Also
with any form of arthritis, painful motion is factor to be
considered. 38 C.F.R. § 4.59.
The service-connected muscle strain and tendonitis of the
left knee is rated under the criteria for evaluating muscle
injuries contained in 38 C.F.R. § 4.73, Diagnostic Code 5311.
Under Diagnostic Code 5311, injury to Muscle Group XI, which
are the posterior and lateral crural muscles, and muscles of
the calf: (1) triceps surae (gastrocnemius and soleus); (2)
tibialis posterior; (3) peroneus longus; (4) peroneus brevis;
(5) flexor hallucis longus; (6) flexor digitorum longus; (7)
popliteus; (8) plantaris, which involve propulsion, plantar
flexion of foot (1); stabilization of the arch (2, 3);
flexion of toes (4, 5); and flexion of knee (6). The
criterion for the next higher rating, 20 percent, is
moderately severe muscle impairment.
Other applicable Diagnostic Codes are Diagnostic Codes 5257,
5260 and 5261.
Under Diagnostic Code 5257, the criteria for a 10 percent
rating are slight recurrent sublaxation or lateral
instability. The criteria for a 20 percent are moderate
recurrent sublaxation or lateral instability.
Under Diagnostic Code 5260, limitation of flexion to 60
degrees is rated noncompensable or zero percent, flexion
limited to 45 degrees is rated 10 percent, and flexion
limited to 30 degrees is rated 20 percent.
Under Diagnostic Code 5261, limitation of extension to 5
degrees is noncompensable or zero percent. Extension limited
to 10 degrees is 10 percent disabling.
Normal range of motion of a knee is from zero degrees of
extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate
II.
Analysis
There is no evidence that either the strength or endurance of
the gastrocnemius muscle is more than moderately disabling.
Although on VA examination in November 2006, the Veteran
complained of pain with movement of the knee, and on VA
examination in November 2008, the examiner noted tenderness
to, the Veteran was able to walk, although with a slight limp
and the use of a cane. Additionally, the evidence does not
demonstrate actual impairment or atrophy associated with the
muscles of Muscle Group XI.
As the muscles involved affect flexion of the knee and as
flexion of the left knee is at least to 50 degrees with pain
and on VA examination in November 2008 the examiner noted no
additional limitation of motion after repetitive movement,
moderately severe muscle impairment under Diagnostic Code
5311 is not demonstrated. 38 C.F.R. §§ 4.40, 4.45; DeLuca v.
Brown, 8 Vet. App. 202 (1995).
Under Diagnostic Code 5260, the criteria for the next higher
rating of 20 percent, requires flexion limited to 30 degrees,
and throughout the appeal period the Veteran has demonstrated
at least 50 degrees of flexion. 38 C.F.R. § 4.71a,
Diagnostic Code 5260. Moreover, while the Veteran's left
knee does reflect limitation of flexion, any loss of flexion
is compensated for in the 10 percent rating under 38 C.F.R. §
4.73, Diagnostic Code 5311. (The Board notes that Muscle
Group XI is involved in flexion of the knee. Diagnostic Code
5311.). Thus, a separate rating for loss of flexion is
prohibited as pyramiding. 38 C.F.R. § 4.14.
Muscle Group XI is not involved in extension of the knee. As
such, the manifestations of the Veteran's muscle injuries do
not include any limitation of extension of the right knee.
The evidence of record shows that the Veteran has full
extension of the left knee, which does not more nearly
approximate limitation of extension to 10 degrees and the
additional functional loss due to pain does not warrant a
separate rating for limitation of extension because pain is
already encompassed in the rating for limitation of flexion
under 38 C.F.R. § 4.73, Diagnostic Code 5311, and rating the
same manifestation under a different Diagnostic Code would be
pyramiding, which is not permissible under 38 C.F.R. § 4.14.
The Board considered if the Veteran's left knee disability
could be rated under Diagnostic Code 5257 based on recurrent
subluxation or lateral instability. In statements and at
hearings in August 2000 and in January 2004, the Veteran
stated that his knee gave way on a weekly basis and caused
him to fall. However, on VA examination in September 1999,
the examiner noted no patellar instability, swelling or
effusion, and the ligaments were stable. On VA examination
in November 2006, stability testing, including Lachman,
McMurray and drawer tests, were normal and there was no
instability of the knee. On VA examination in November 2008,
there was no ligamentous instability. Therefore, absent
objective evidence of instability, the Veteran is not
entitled to a separate rating under Diagnostic Code 5257.
For the reasons stated, the preponderance of the evidence is
against the claim, and the benefit-of-the-doubt standard of
proof does not apply. 38 U.S.C.A. § 5107(b).
Extraschedular Rating
Although the Board is precluded by regulation from assigning
an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the
first instance, the Board is not precluded from considering
whether the case should be referred to the Director of VA's
Compensation and Pension Service.
The threshold factor for extraschedular consideration is a
finding that the evidence presents such an exceptional
disability picture that the available schedular rating for
the service-connected disability is inadequate. There must
be a comparison between the level of severity and
symptomatology of the service-connected disability with the
established criteria.
If the criteria reasonably describe the Veteran's disability
level and symptomatology, then the disability picture is
contemplated by the Rating Schedule, and the assigned
schedular evaluation is, therefore, adequate, and no referral
is required. Thun v. Peake, 22 Vet. App. 111 (2008).
Here, the rating criteria reasonably describe the Veteran's
disability level and symptomatology, and provided for higher
ratings for more severe symptoms of functional limitation.
As the disability picture is contemplated by the Rating
Schedule, the assigned schedular rating is, therefore,
adequate. Consequently, referral for extraschedular
consideration is not required under 38 C.F.R. § 3.321(b)(1).
ORDER
A disability rating higher than 10 percent for muscle strain
and tendonitis of the left knee is denied.
____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs